Tricked Into Paying Back (Shulchan Aruch, Choshen Mishpat 79:4)

Se’if 4 – Mechaber: The plaintiff claims he lent the defendant money within the earshot of witnesses. But the plaintiff hid the witnesses in such a way that the defendant could not see them, so he was not aware of their presence. They, however, could hear everything the plaintiff and defendant were saying to each other and heard the plaintiff tell the defendant that he was giving him money as a loan. The defendant now denies ever having received the money and is therefore considered a liar by the court in light of the witnesses’ testimony.

The outcome is different if the defendant admits that he received the money but immediately explains that it was repayment for a loan owed to him. He further explains to the court that the only way to extract repayment from the plaintiff was by tricking him into believing that he was accepting the money from him as a loan. If he had known that witnesses were present who might subsequently contradict him, he would not have acted in this manner, he says – but he didn’t know. The court accepts this response and enters judgment in favor of the defendant provided he takes a shevuat heseit oath of denial.

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Ner Eyal: In the first case, hidden witnesses testify to the plaintiff lending money to the defendant. Since the defendant claims the transaction never took place, the court considers him a liar. If, however, the witnesses do not testify to a loan having occurred; they only testify that the defendant admitted that he owes the plaintiff money, the defendant is not presumed to be a liar.

Why? Because a person is entitled to admit a claim outside court today and deny it in court tomorrow. He can claim that his admission outside court was offered in jest – that the plaintiff’s claim was so unfounded and frivolous that it prompted him to respond with an equally frivolous and unfounded admission.

An admission outside court is only admissible if it was made in the presence of witnesses specifically appointed by the defendant himself to hear the admission. Otherwise, the defendant can claim he was not serious when he made it.

Editor’s Note: Although the material in this column is a bit dense, The Jewish Press believes it is worth presenting to the reading public as it represents the first ever translation of Chosen Mishpat into English. Many people study Orach Chayim; very few study Choshen Mishpat, a fact that Rabbi Grunfeld said his father, Dayan Isador Grunfeld, z”l, would often bemoan. “Either God is everywhere or nowhere, and if you expel Him from the business place, he is nowhere,” Dayan Grunfeld said.

Raphael Grunfeld received semicha in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Rav Dovid Feinstein. A partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, Rabbi Grunfeld is the author of “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” and “Ner Eyal: A Guide to the Laws of Shabbat and Festivals in Seder Moed.” Questions for the author can be sent to rafegrunfeld@gmail.com.